Director of Public Prosecutions v Perera

[2018] VCC 1639

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No.18-00783

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUWANMALLE PERERA

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 October 2018
CASE MAY BE CITED AS:	DPP v Perera
MEDIUM NEUTRAL CITATION:	[2019] VCC 1639

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr G. Martin
For the Accused	Mr P. Ansell

HIS HONOUR:

1       Ruwanmalee Perera, you have pleaded guilty on indictment to a single charge of dangerous driving causing death.  This carries a maximum penalty of 10 years' imprisonment.  At the time that you committed this offence you were 40 years of age. You are now 42 years of age.

2       I will be imposing a Community Corrections Order without a term of imprisonment for reason that I will explain.  The circumstances in which you came to commit the offence are set out in a detailed prosecution opening dated 14 August 2018, a copy of which was tendered as Exhibit A on the plea hearing.  I will not recite the full circumstances of your offending and it is sufficient for present purposes to provide only the following outline.

3       

Springvale Road at the location of the collision is a three lane two way divided carriageway, running a general north-south direction.  At the time of the collision all traffic lights were operating correctly.  It was a clear, sunny and dry day.  The road is bitumen and was deemed to be in good condition.  On the afternoon of Wednesday 30 November 2016 at approximately 4.50 pm you were driving east along Springfield Road in your vehicle, a Mazda SUV, on your way to drop your son off at a cricket match.  The victim Qimin Zhang had just collected his grandson from a local childcare centre and was walking east along

Springfield Road, his grandson in a stroller with the intention of crossing at the pedestrian crossing at the intersection with Springvale Road.

4       

You pulled your vehicle up behind a row of cars waiting to turn right onto Springvale Road.  The green right turn arrow was illuminated and the vehicles in front of you proceeded to make the legal turn.  However, when your vehicle reached the intersection, the right turn arrow dropped out, allowing for westbound traffic to flow from the intersection.  You were thus required to give way to oncoming westbound vehicles.  At the same time that the right turn arrow dropped out the green pedestrian signal at the pedestrian crossing illuminated signalling that pedestrians could commence walking east across

Springvale Road. 

5       Mr Zhang proceeded to legally cross at the pedestrian crossing while pushing the stroller.  You were giving way to oncoming westbound vehicles, but it is unclear whether you did so from the entry line to the intersection where Springfield meets Springvale Road, or whether you had moved onto the intersection and were waiting to complete the turn once the way was clear.  Though this latter description is likely.  Once you saw no further traffic coming, from the north-east, westbound, you completed crossing over.

6       You completed your crossover over three northbound lanes of Springvale Road and proceeded to turn right onto the three southbound lanes.  From that point to the point of the crossing, it is a matter of metres.  During the plea hearing I indicated that I was very familiar with that intersection, which I had used for over 30 years.  It should be understood that Springfield Road, as it intersects Springvale Road from the north-east, is at a sharp 45 degree angle as it travels west.  And when waiting to turn right into Springvale as you did, it is quite difficult to see vehicles coming from the east, which causes a driver turning south into Springvale to crawl further and to turn to the north-east visually while the car is facing south-east in effect.

7       The intersection is not a true crossroad.  This means that a driver effecting a turn like yours, is deprived of the more open peripheral vision of pedestrians on the crossing, which usually meets a driver at a true cross-like intersection.  Of course this also means that a driver before proceeding must or should perform a more careful, purposeful head check to the right to ascertain if there are pedestrians crossing from the west to the east.  It is clear that you either fail to look, fail to look sufficiently or adequately, or fail to properly evaluate the danger at that time.  This moment of misjudgement or attention, means that when you proceeded to complete your turn, you drove your car in a manner that was dangerous to the public, having regard to all the circumstances.  However, it is obvious from the circumstances that the time and length of the dangerous driving was very short.

8       

There was an additional "Give way to peds" signal applicable to you on the south-east corner of the intersection mounted on the side of a traffic control pole.  At the time of making your turn, Mr Zhang was still crossing

Springvale Road.  As you made the turn, your vehicle struck him.  He was propelled head first onto the road fracturing his skull.  The stroller was also pushed a short distance before flipping onto its side with fortunately no serious injuries to the child.  You completed the turn before pulling over a short distance down the road.  Motorists and pedestrians who witnessed the incident rushed to the aid of Mr Zhang and his grandson.  He was later conveyed to the Royal Melbourne Hospital for treatment, but died later that night.

9       His grandson, Michael, suffered a graze on his face and a blood nose, but was otherwise unharmed.  You were cautioned and questioned at the scene by police who observed that you were in a stressed state.  You readily admitted to being the driver of the car and preliminary breath and oral fluid tests indicated that no alcohol or drugs were present in your system, which was later confirmed in subsequent blood tests.

10      Detective Sergeant Mehegan, a collision reconstructionist later attended the scene in order to conduct an examination.  Her assessment concluded that your vehicle would have been travelling between 33 and 37 kms an hour when it collided with Mr Zhang.  Senior Constable Brickley from the mechanical investigation unit, inspected your vehicle.  He found no mechanical fault present that could have caused or contributed to the collision.

11      In my view this offending falls at the lowest end of the offences of this nature.  There is a total absence of aggravating features here.  You were not speeding, you were not intoxicated or under the influence of illicit drugs or substance.  Your driving had not been previously erratic.  You were not driving your car competitively, aggressively or showing off.  You were not using your mobile phone, you were not tired or fatigued.  The time and length of the journey during which others were exposed to the risk of injury or death as a consequence of your driving was momentary.

12      Before deciding an appropriate sentence, I've examined and determined your level of moral culpability as being at the lowest end of these type of offences.  Although driving – dangerous driving causing death is considered a manifestation of negligence and a sense of carelessness, it can, as it does in this case, encompass momentary inattention which may attract considerably less condemnation, than might otherwise apply.  You were properly licensed at the time.  In my view because of your age and the complete absence of any prior convictions, specific deterrence has no significant work to do here, except perhaps in the sense that at some point in the future you will again be relicensed.  The sentence should be a reminder to you of the responsibility placed and demanded of drivers and therefore on you specifically to focus, to be attentive and to stay focused on the task of driving.

13      General deterrence is of course very relevant.  It is critical that a message is sent and understood by all road users, that they must at all times, pay due care and attention.  The momentary failure like this case, can result in a catastrophic outcome for other people on the road.  One life has been lost, many lives have been affected.  In my view, the need to give effect of general deterrence demands that a conviction be imposed on the charge.

14      Before dealing with your personal circumstances I should acknowledge that your driving caused the death of Mr Zhang, who was 66 at that time.  This death has caused profound distress and grief for his widow and his children and grandchildren.  The victim impact statement tendered to the court attests to the deep sense of loss of a loved and caring devoted family man.  Ms Huina Zhang has written of the anguish and suffering endured as a result of the death of a loving father and grandfather.

15      Mr Zhang indeed, was valiant and showed great courage in the moment of the collision, pushing the stroller away from him to protect his grandson from injury.  This was a courageous and selfless act.  His grandson still suffers from deep emotional scars.  Mr Zhang's own mother was not told of his passing to avoid her further grief in her age.  Ms Huina Zhang has experienced severe depression and this has meant a loss of work and financial stress.  Mr Zhang's wife also noted and made a statement in which she describes her heartbreak at the loss of her husband.  She has undergone physical and emotional trauma with insomnia and deterioration of her own health, including anxiety and depression.

16      I have taken these powerful and emotional statements into account.  And although they appear unforgiving in tenure and seek the maximum possible redress from the court, it should be understood that such considerations though understandable, cannot overwhelm the proper exercise of the sentencing principles properly to be applied.

17      I should say to the family that any sentence imposed today is not to be understood as in any way placing an equivalent value or numerical on the life that has been lost, or the grief or emotional trauma that Mr Zhang's death has caused.  I take into account your plea of guilty which I consider to have been made reasonably early.  I accept this plea as a utilitarian value of having avoided a traumatic and unnecessary criminal trial.  I also accept that your plea is accompanied by remorse.

18      You were born in Columbo, Sri Lanka to a catholic family and your early years were uneventful.  Having completed primary and secondary school, you studied accountancy at a charted institute and by correspondence.  You then married your husband in 2002, who came to Sri Lanka from Australia.  He had arrived in this country seeking a skilled management visa and you both returned to Australia in 2003.  Your first job was obtained soon after you arrived.  Then you were at the North Balwyn Childcare Centre for some four years.  During these years you completed a Diploma in Childcare Services and your first child was born in November 2004.

19      When in 2007, you had a second child, you left that centre.  You returned to work in 2008 at a kindergarten where you remained for five years.  And while there you began a Bachelor in Early Childhood Education.  You then went to a kindergarten as a teacher, you were second in charge and education leader.  You've been happily married for some 18 years.  You've had no psychological or psychiatric history.  You do not drink alcohol and have never used illicit drugs.  You have no prior criminal convictions and have no prior driving offences.

20      Dr Michael Papasava, a clinical psychologist reported to the court that you suffer from a major panic and depressive disorder and post-traumatic stress disorder developed as a result of these events, which includes persistent re-experiencing of the trauma, distressing recollections and nightmares.  You feel anxious, guilty, ashamed and upset with the stress in physical effects.  The symptoms are fully explored in this report and can be summarised by saying that the consequences of the driving have left you significantly impacted upon to a severe extent amounting in my view to significant extra-curial punishment and consequences.

21      Pervasive guilt and shame affects the whole of your life.  I accept any imprisonment would make your condition markedly worse.  I take your background into account and in particular your good character, industrious and diligent life of work and study and life within the family as a wife and mother.  I've also taken into account the letter you have written to the Zhang family.  Although it was refused so far by them, I accept it expresses genuine remorse, shame and empathy for their loss.  You and your family were devoted and are devoted Catholics and you have sort forgiveness and offered prayers for the Zhang family.

22      

These expressions are heartfelt in my view and to speak of excellent prospects for your future rehabilitation.  I've also taken into account the letter from

Melintha Perera your sister, who gave impressive evidence on your behalf.  In addition, I have taken into account letters from Sabhera Basil,

Michelle Kavanaugh, Dr Ardjmand and Father Gerard Mariatis.  They each attest to your good character and deep remorse.  There is in this case, a matter of some delay which was explained as having been generated due to the workload confronting the police and the informant in particular.  Such delay is not unusual and so no real criticism can be visited upon the prosecution.  It was not due to you and during that time you have waited with anxious trepidation for your fate.

23      I take into account that matter, but given my sentencing disposition, I need say no more about it.  I have considered the relevant authorities on a very large number of cases, some of which were cited from the obvious one such as King, Stevens v The Queen, R v Oates and DPP v Needling.  I have reviewed the number of County Court cases as well as Boulton v The Queen.  I am persuaded that a Community Corrections Order is the appropriate sentence and that such a disposition was within the appropriate sentencing range was conceded by the Crown.

24      I had you assessed for a Community Corrections Order, you were found to be suitable with low risk of reoffending.  Minimal order conditions were recommended to allow you to continue a pro-social lifestyle.  It recommended your community, unpaid community work, I will impose such a condition.  It also recommended supervision is not an intervention which is required, but you will be still required to attend to scheduled appointments as required.  Your psychological counselling and treatment can be monitored by Community Correctional Services, so that a mental health treatment condition is recommended.

25      The Community Corrections Order will last for 18 months', commencing today.  For the period of the order, you must not commit any offence, punishable by imprisonment.  You must report and receive visits from a Community Corrections Officer as directed.  You must report to the Community Corrections Centre specified in the order within two working days.  You must let the Community Correction Officer within two working days of your change of address or a job, even if only temporary, know of that change.  You must not leave Victoria without first getting permission to do so from the Secretary of Corrections.  You must comply with general directions given by the Secretary, whether oral or written, necessary for you to comply with the order.

26      I will order that you will perform 150 hours of unpaid community work.  The consequence of breaching the order, without reasonable excuse, are that you may face three months or up to three months imprisonment for breaching that order and if you breach the undertaking you are going to give me today, you can expect to be brought back before me and this court may vary or confirm or cancel the order and sentence you again for the original offending, which may involve a sentence of imprisonment.  Do you understand?  Do you have any questions?  Do you consent to the making of that order?

27      

But for your plea, I would have sentenced you to 10 months imprisonment.  All your licenses held by you will be cancelled.  You will be disqualified from obtaining a license for a period of 18 months.  As to the order sought in relation to a forensic sample, I will not make such an order, as I do not find that it is in the interests of justice to do so.  Are there any other ancillary orders,

Mr Prosecutor?

28      MR MARTIN:  No, Your Honour.

29      HIS HONOUR:  Mr Ansell that document will get prepared for your client's signature and you can take it to her for signing.

30      MR ANSELL:  Thank you, Your Honour.

31      HIS HONOUR:  Ms Perera can step out of the dock.